TERRYL J. SCHWALIER, Brig. Gen., USAF, Ret., Plaintiff-Appellant,
CHARLES T. HAGEL, Secretary of Defense AND DEBORAH LEE JAMES, Secretary of the Air Force, Defendant-Appellees
Petition for certiorari filed at, 03/27/2015
Appeal from the United States District Court for the District of Columbia in No. 1:11-CV-00126, Judge Rosemary M. Collyer.
EDWARD F. RODRIGUEZ, JR., Law Offices, of Fairfax, Virginia, argued for plaintiff-appellant. With him on the brief was DAVID P. SHELDON, Law Offices of David P. Sheldon, of Washington, DC.
DOUGLAS K. MICKLE, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendants-appellees. With him on the brief were STUART F. DELERY, Assistant Attorney General, ROBERT E. KIRSCHMAN, JR., Director, and STEVEN J. GILLINGHAM, Assistant Director. Of counsel on the brief was TODI S. CARNES, Air Force Legal Services Agency, General Litigation Division, Military Personnel Law Branch, of Joint Base Andrews, Maryland.
Before PROST, Chief Judge, REYNA and HUGHES, Circuit Judges.
Hughes, Circuit Judge.
Following nomination by the President and confirmation by the Senate, Brigadier
General Terryl J. Schwalier was scheduled to be appointed to major general in early 1997. Before that time, however, his appointment was delayed and the President later chose not to appoint him. Nonetheless, Mr. Schwalier argues that he was appointed by operation of law after the delay of his appointment expired and before the President's decision. The appointment process for senior military officers does not allow for automatic appointments, and a President's decision not to appoint an officer is unreviewable. Because the district court correctly held that the Air Force and the Department of Defense did not act arbitrarily or capriciously by not retroactively appointing Mr. Schwalier, we affirm.
In 1995, a Major General Promotion Selection Board placed Mr. Schwalier on a list of candidates to be promoted to major general. Promotion to major general constitutes an appointment that must be made by the President, by and with the advice and consent of the Senate. See U.S. Const. art. II, § 2, cl. 2; 10 U.S.C. § 624(c). Pursuant to 10 U.S.C. § 624, President Clinton received the list and nominated Mr. Schwalier for the promotion. The Senate confirmed the nomination in March 1996, and Mr. Schwalier's projected effective date of promotion was to be in January or February of 1997.
Before the effective date of his promotion, Mr. Schwalier assumed command of the 4404th Wing (Provisional) at the King Abdulaziz Airbase in Saudi Arabia. Many of the Wing's personnel lived in the Khobar Towers, a nearby apartment complex. On June 25, 1996, a terrorist group detonated a truck bomb at the Khobar Towers, killing 19 airmen and injuring hundreds of others. In December 1996 and in January 1997, Mr. Schwalier was told that his promotion would be delayed. Meanwhile, Congress, the Department of Defense, and the Air Force commissioned investigations of the attack. The Department of Defense's investigation was unfavorable to Mr. Schwalier, and the Secretary of ...